Case: Gray v Barry Bros Specialised Services Pty Ltd [2023] NSWPIC 364

Date of Decision: 24 July 2023

Jurisdiction: Personal Injury Commission, Gaius Whiffin


On 17 November 1997, Denis Gray, (the Applicant) was working in the course of his employment with Barry Bros Specialised Services Pty Limited (the Respondent) at the Orange Water Waste Treatment Plant when he sustained an injury to his lower back. On 24 November 1997, the Applicant signed a worker’s claim for compensation and an Employee’s Report of Injury solely referring to an injury to his lower back on 17 November 1997.

On 23 February 2000, Neilson CCJ of the former Compensation Court of New South Wales awarded the Applicant compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) with respect to 31.5% permanent impairment of the back and 13.5% permanent loss of efficient use of the left leg at or above the knee.

On 28 January 2022, the Applicant made a further claim pursuant to section 66 of the 1987 Act in respect of 35% permanent impairment of the back and now 15% permanent impairment of the neck. On 9 June 2022, the Respondent denied liability for the alleged injury to the neck consistent with its earlier dispute notices dated 27 December 2018 and 11 November 2020.

The Applicant eventually filed an application to Resolve a Dispute in the Personal Injury Commission and following a preliminary teleconference the only issue in dispute between the parties was whether the Applicant sustained an injury to his neck arising out of or in the course of his employment with the Respondent on 17 November 1997 and whether his employment was a substantial contributing factor.


In support of the Applicant’s claim, he tendered four separate statements. The first was dated in December 2003 which claimed that whilst pulling a hose he experienced a sharp pain in his back but made no reference to an injury to his neck. The second was undated and widened the mechanism of injury to include him having fallen into a concrete pit and landing on his back. That statement claimed that he mentioned neck pain to his doctor and that 18 months after the date of injury he felt symptoms in his neck. His third statement was dated in September 2019 wherein he claimed his neck was jarred as a result of the fall. The fourth statement was dated in June 2023 which provided further detail on the mechanism of injury.

Member Whiffin summarised the evidence before him identifying when a doctor, being a treatment provider or an independent medical examiner, had referenced the Applicant’s neck, symptoms to the neck, examination of the neck or radiology of the neck.

The Applicant was cross examined on his evidence and the Member described his evidence as unreliable because he had conceded that could not recall propositions put to him and it did not correlate with the limited contemporaneous records available. The Member was also concerned as to how the Applicant was so detailed in his last statement, which was dated 26 years after the original date of injury but on cross examination was unable to recall propositions to him.

The Member was also cogniscant of the fact that the Applicant did not seek compensation in the proceedings before the Compensation Court in relation to his original claim for permanent impairment.

The Member was not accepting of the medical evidence which supported the Applicant’s later version of events but acknowledged there to be some reference to the neck after the date of injury but noted there to be no causal link drawn to the mechanism of injury on the date of injury.

The Member was also satisfied on the evidence before him that the Applicant had sustained a fall in July 2001 despite the Applicant stating to the contrary as three medical professionals had reported as such in their contemporaneous notes. The Member acknowledged the caution required to be taken with respect to clinical notes but believed it to be unlikely that three practitioners would all make the same account incorrectly.

The Member made a Jones v Dunkel inference with respect to medical evidence put before the Respondent’s expert medical opinion but not filed into the proceedings which made reference to an injury to the neck being injured at work. However, the Member noted that such an inference cannot be made to create evidence or draw an adverse inference to the Respondent, just that the evidence would not have aided the Respondent’s case.

Accordingly, and with reference to Roche DP’s statement in Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD, the Member did not feel an actual persuasion with a probability in excess of 50% that the Applicant proved he injured his neck on 17 November 1997.

Lessons for Employers & Insurers

This case demonstrates the utility of contemporaneous treatment providers clinical records and the necessity of cross examination in workers compensation claims before the Personal Injury Commission despite the Commission’s reticence to grant leave for cross examination and the caution applied to clinical notes.

With that being said, the claim for the Applicant, as far as the written determination is concerned, depicts a matter where the Commission was asked to accept whether a worker suffered a neck injury, 26 years after the date of injury and in circumstances where he failed to make such a claim against his employer and failed to raise such an allegation of injury before the Compensation Court. Although not addressed in this case, it is worth considering whether an allegation of injury to the neck was so connected with the original claim for injury to the lower back that it would be considered unreasonable for the Applicant to have not raised the allegation at that time.

Further, the case illustrates the fact that, whilst the causation tests under sections 4 and 9A are rather wide in accordance with the purpose of the scheme, the onus to prove that causal connection rests with the party seeking to rely upon the defence. In this case, the Applicant’s evidence did not persuade the Member that the neck injury was more probable than not to have occurred in the course of his employment. It was not the Respondent’s case to prove the contrary.

The fact that the Applicant’s mechanism of injury as he alleged had changed over time, seemingly to support the latter allegation of injury to the neck would appear to have only been questioned by the Member in the context of him being cross examined which revealed limited recollection of the events over 26 years prior.

Contributor: Chris Smith

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.